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"The United States Supreme Court is among the most important, but least understood, institutions in American life. Its decisions can profoundly affect, for good or ill, the well-being of our republic. Great Cases in Constitutional Law should be read because it will further the public's understanding of the Court's role. It is a book of many learned essays—provocative, illuminating, compelling."—William J. Bennett
"In a country where nearly every major public issue is affected by Supreme Court opinions, the Great Cases are too important to remain the preserve of legal specialists. Robert George has performed a genuine service by bringing together some of the country's leading public intellectuals to make accessible to the general reader the debates and decisions that have shaped, and continue to shape, our democratic experiment."—Mary Ann Glendon, Harvard University
"In this book, some of our most interesting contemporary constitutional thinkers attack those who look to the Supreme Court (or, for that matter, the Constitution) for ultimate resolution of our most basic political controversies—whether slavery in the past or affirmative action, abortion, or the right to die in the present. The essays are readily accessible to student and general reader alike and should provoke much-needed thought about the roles of the Constitution and the Court as its ostensible guardian."—Sanford Levinson, University of Texas, Austin
"A collection of scholarly but accessible essays. . . . The principal essays range in style from professorial disputation to impassioned moral advocacy.. . . [This] volume thoughtfully explains the views of those who advocate more of the original Constitution, and less of the Supreme Court, in American political life."—Publishers Weekly
"All essays provide interesting insight into the concepts of judicial review and judicial activism. . . . [An] excellent book. . . . I highly recommend it to all."—Ruth Ann Wary, Law and Politics Book Review
Marbury v. Madison
and the Theory of
Nearly two centuries ago the Supreme Court's decision in Marbury v. Madison set the nation forth on an extended experiment in political design. Marbury articulated a theory of judicial review in which the courts could play a large role in national governance. And, though the courts did not realize Marbury's full potential for many years, when they did they began to assert a theory of judicial review arguably even more potent than the one Chief Justice John Marshall developed in Marbury. Here I examine some contemporary understandings of Marbury's theory of judicial review. I distinguish among a theory of judicial authority, which was all that was truly at issue in Marbury, and theories of judicial exclusivity and supremacy. In line with much recent scholarship—and with an argument made by former attorney general Edwin Meese III—I argue that neither Marbury nor any powerful account of constitutionalism supports the latter theories. Instead, ordinary citizens as well as our representatives have the authority and the responsibility to assess the constitutionality of proposed and enacted legislation. Having done so, we may shape our conduct according to our own understanding of the Constitution's requirements, even in the face of contrary Supreme Court interpretations.
We can frame the underlying issues by considering a contemporary problem. In 1982 the Supreme Courtdecision in Plyler v. Doe found unconstitutional a Texas statute denying a free public education to children of non-citizens illegally present in this country. In 1994 California's voters approved Proposition 187, an amendment to the state's constitution that, among other things, would deny a free public education to that same class of children. A federal court promptly held this part of Proposition 187 unconstitutional and barred state officials from enforcing it.
Consider a series of problems with respect to Proposition 187:
1. The legislator. The legislature has to enact some new statutes to enforce Proposition 187. But the U.S. Constitution requires legislators to take an oath to uphold the Constitution, and California law requires them to uphold the state constitution and laws. Do those two oaths conflict? And if they do, would a legislator act in some way improperly if he or she voted to implement Proposition 187 notwithstanding the Supreme Court's decision in Plyler?
2. The administrator. After the state legislature passes implementing legislation, someone actually has to enforce Proposition 187. School administrators, for example, may have to ask about the citizenship status of the parents of children who attempt to enroll in their schools. They are supposed to refuse to admit children affected by Proposition 187. Would a school principal do something wrong if she or he followed Proposition 187 and denied admission to a child even though Plyler says that doing so violates the U.S. Constitution?
3. The voter. In deciding whether to vote for Proposition 187, each voter will have views on whether the proposal would embody a sound policy. Would a voter who thought Proposition 187 a good policy act improperly in voting for it despite Plyler?
The answer to these questions is, "Of course not. Legislators took an oath to support the Constitution—the Constitution, not the Supreme Court. What the Constitution means is not necessarily what the Supreme Court says it means. If legislators think the Court misinterpreted the Constitution, their oath allows them—indeed, it may require them—to disregard Plyler." Similar responses are available for the administrator and the voter.
Explaining that answer, however, is more complicated than we might think. The first difficulty is that it seems to be in some tension with this country's strong tradition of judicial review. To understand this tradition we must look briefly back at Marbury. The Constitution's framers did not anticipate the major political development of the 1790s—the emergence of a national party system. The Federalist party, which controlled the government through the 1800 elections, was particularly suspicious of its opponents led by Thomas Jefferson. Party members believed that Jefferson's policies were deeply wrong, and what they saw as his commitment to a party system was inconsistent with the more basic idea that the government should be directed to achieve a nonpartisan public good. Having lost the presidential and congressional elections in 1800, the Federalists confronted what they believed was a constitutional turning point. They took advantage of the long "lame duck" period between the elections and the installation of the new administration and Congress to preserve their hold on the third branch of government. The Judiciary Act of 1801 responded to some real problems of judicial administration by creating a number of new judicial offices and by other revisions in the administration of justice. Under the circumstances, however, the Act was inevitably seen by Jefferson and his supporters as an attempt to thwart their accession to power. There was a real chance that the Jeffersonians would figure out some way to ignore the new statute.
They were given their chance by an apparent misstep by John Marshall. Congress created new judicial positions, and departing president John Adams moved to fill the posts. The appropriate documents were prepared and signed. Marshall, as secretary of state, had the responsibility of delivering these commissions to the new judges. But, apparently in the press of business, he simply overlooked his obligations to a few of the new judges. The new administration took advantage of Marshall's error to decline to deliver the commissions. William Marbury, whom Adams had named as a magistrate for the District of Columbia, filed an action in the Supreme Court seeking in order to direct James Madison, the new secretary of state, to deliver the commission. Political observers understood this lawsuit to be a Federalist challenge to the Jeffersonians' position on controlling the judiciary.
In what historians have come to regard as a political masterstroke, John Marshall, in his capacity of chief justice, managed to criticize the Jeffersonian program without forcing a direct confrontation. His opinion for the Court spent a great deal of time explaining why Madison was indeed under a legal duty to deliver Marbury's commission, and why a court could appropriately order even a high public official to do what the law required. But, Marshall said, Marbury sought his remedy from the wrong court. Not that Marbury had misread the statute book: according to the Court, the original Judiciary Act of 1789 did purport to give the Supreme Court the power to issue the remedy in just such cases. But, Marshall continued, that provision in the 1789 act was unconstitutional, and the courts therefore could not do what it directed them to do.
Observers both then and later found much to criticize in Marshall's opinion: his reading of the 1789 Judiciary Act, his analysis of Marbury's entitlement to a remedy, the constitutional interpretation that led him to find the 1789 act's provision unconstitutional. But the assertion that the courts had the power of judicial review was hardly noteworthy. The Constitution's framers assumed that the new national courts would have the power to hold statutes unconstitutional, because, as they saw it, such a power was inherent in the very idea that a written constitution adopted by the people was superior to any statutes adopted by the people's representatives. Over the previous decades, both state courts and the national courts had assumed that they did have the power to hold statues unconstitutional, and a few state courts had actually done so.
But, if Marbury's assertion of the power of judicial review was not novel, some of Marshall's words opened the way to a broader view of the courts' power. In particular, in defending judicial review, Marshall wrote, "It is emphatically the province and duty of the judicial department to say what the law is." This can be read in at least two ways. Marshall might have been saying, "Look, if you pass a statute asking us to do something—in Marbury, hear a particular class of cases—you can't keep us from saying what the law is. And the Constitution itself says that it is law—indeed, supreme law." On this reading, Marshall's statement simply refers to what courts do. It has nothing to say about the constitutional duties and powers of other departments, state officials, and ordinary citizens.
The second reading, however, does treat the courts and not just the Constitution as supreme: "It is emphatically the province and duty of the judicial department—and no one else—to say what the law is. Once we say what the law is, that's the end of it. After that, no one obliged to support the Constitution can fairly assert that the Constitution means something different from what we said it meant."
Recently the Supreme Court, without dissent on this point, seems to have adopted this broader reading. In 1990 the Supreme Court held that the First Amendment's Free Exercise Clause invalidated only statutes that were intentionally designed to burden religious practices, and did not make "neutral laws of general applicability" unconstitutional. This decision was immediately controversial, and an unprecedentedly broad coalition of interest groups—encompassing the American Civil Liberties Union and the Christian Coalition—mobilized to get around it. Congress responded by enacting the Religious Freedom Restoration Act. Purporting to exercise its power under Section 5 of the Fourteenth Amendment, which gives Congress the power "to enforce, by appropriate legislation," the Amendment's provisions, Congress prohibited any government from substantially burdening the free exercise of religion even by a neutral law of general applicability unless the burden promoted a compelling governmental interest and was the least restrictive means of doing so.
The city of Boerne, Texas, a suburb of San Antonio, believed that it could revitalize the town by creating a historic preservation district to attract tourists. St. Peter Catholic Church was in the district. The number of parishioners at St. Peter's had grown to the point where the old building could not accommodate the new population. St. Peter therefore sought permission to enlarge its building. The city refused the permit, and St. Peter sued, asserting that the city's actions violated its rights under the Religious Freedom Restoration Act. The Supreme Court eventually held the act unconstitutional. Section 5, Justice Anthony Kennedy argued for the Court, gave Congress only the power to remedy violations of other provisions in the Fourteenth Amendment. But Congress cannot remedy things that are not unconstitutional. Because the Court had declared that neutral laws of general applicability were not unconstitutional, there was nothing for Congress to remedy: "When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed."
Much in Justice Kennedy's statement here turns out to be clearly correct, particularly, as we will see, his point that people should expect the courts to adhere to settled precedents in later cases. But the rhetoric of judicial supremacy suggests a broader and more problematic understanding of the proper relations among the Constitution, the courts, and everyone else.
Two Episodes of Judicial Supremacy
Why would anyone think that judicial supremacy was the right way to understand our Constitution? It would not be surprising to find judges supporting judicial supremacy; it makes their job more important and interesting. But there is more to the position than self-interest.
In 1958 the Supreme Court faced a challenge to its authority in the Little Rock, Arkansas, school desegregation case of Cooper v. Aaron. Four years earlier, Brown v. Board of Education had held school segregation to be unconstitutional. The Court then held that states had to desegregate their schools "with all deliberate speed." Responding to a lawsuit and orders from lower federal courts, the school board in Little Rock developed a plan to desegregate the city's schools gradually. The state's governor, Orval Faubus, opposed desegregation and generated a large public controversy over Little Rock's plan. As the school board put it in its brief to the Supreme Court, the "legislative, executive, and judicial departments of the state government opposed ... desegregation ... by enacting laws, calling out troops, making statements vilifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace."
The lower federal courts found that the public disorder was a reason to delay desegregation. The Supreme Court disagreed. More important here, it rejected Governor Faubus's claim that he was not required to follow Brown's directives. Relying on Marshall's statement, the Court asserted that Marbury "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution." Calling that principle "a permanent and indispensable feature of our constitutional system," the Court said that "it follows that the interpretation of [the Constitution] enunciated by this Court in the Brown case is the supreme law of the land." The oath to support the Constitution that Governor Faubus and state legislators took gave that interpretation "binding effect."
The Little Rock case presented a particularly appealing setting for asserting judicial supremacy. Brown was unquestionably right, or so the justices and a large part of the country thought. Governor Faubus's resistance had provoked a real crisis of law and order, with white opponents of desegregation credibly threatening to inflict violence on anyone—including African American children—who tried to desegregate the schools. And the Court correctly asserted that a century and a half of judicial review had led many Americans to believe that the Court's constitutional interpretations were indeed supreme.
But there are other cases where strong assertions of judicial supremacy are less appealing. The notorious Dred Scott case makes the point. The case arose when Dred Scott, held as a slave in 1836, was taken by his owner to the free territory of Minnesota for several years. After Scott and his owner returned to Missouri, a slave state, Scott sued for his freedom, claiming that he had become free because of his residence in Minnesota. Hoping to take contention over slavery off the national political agenda in the 1850s, the Supreme Court held congressional efforts to restrict the expansion of slavery into the nation's territories unconstitutional. According to the Court, Congress lacked affirmative power to do so, and denying slave owners the right to take their slaves into the territories deprived the slave owners of their property without due process of law.
After the Court's decision, Abraham Lincoln offered an alternative to judicial supremacy. Debating Democrat Stephen Douglas during their 1858 campaign for the Senate, Lincoln replied to Douglas's effort to defuse the slavery controversy by relying on the Court's decision. Douglas said that the courts were created "so that when you cannot agree among yourselves on a disputed point you appeal to the judicial tribunal which steps in and decides for you, and that decision is binding on every good citizen." Using language not that much different from the Court's in Cooper v. Aaron, Douglas said that when the courts resolved the questions, that was the end of it: "When such decisions have been made, they become the law of the land."
Lincoln would have none of it. He agreed that the Court's decision resolved the precise controversy before it; Dred Scott would remain a slave. But he rejected the decision "as a political rule which shall be binding on the voter ... [or] binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision."
In his First Inaugural Address, delivered even as the South prepared for war over slavery, Lincoln again made his position clear. Dred Scott was "binding ... upon the parties." In addition, the Court's decisions were "entitled to a very high respect and consideration in all parallel cases by all other departments." Even an "erroneous" decision could be followed when "the evil effect of following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice." But, Lincoln continued, "the people will have ceased to be their own rulers" if "the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions."
Lincoln was a subtle constitutionalist, and his statements contain nearly everything we need to work out a theory that would explain the result in Cooper v. Aaron without committing us to a strong theory of judicial supremacy.
Complexities in some Seemingly Easy Cases:
Pardons and Vetoes
We can begin by noting a peculiar feature of Cooper v. Aaron. There was no judicial order directing Governor Faubus himself to desegregate the Little Rock schools. So, in the narrowest sense, Faubus's position was entirely consistent with Lincoln's: at least in a purely legal sense, Governor Faubus was not refusing to comply with a judicial order in a case already resolved against him.
Of course everyone knew that Governor Faubus could be brought into a lawsuit. If he continued his resistance after that, he would directly present the question of judicial supremacy. In Justice Anthony Kennedy's terms, he could expect the Court to adhere to Brown "in later cases and controversies" arising directly out of the Little Rock school crisis. But it is worth pausing to think about situations in which it might seem that an official could reject the Supreme Court's constitutional interpretations without running the risk of becoming the defendant in a lawsuit—situations in which no later case or controversy is likely to arise.
The classic examples involve Presidents Thomas Jefferson and Andrew Jackson. As political controversy intensified in the 1790s, Jefferson's opponents controlled Congress and the presidency. They enacted a law making it a crime to criticize the president (but not the vice president, who happened to be Jefferson). Several of Jefferson's political allies were convicted under this antisedition statute. Jefferson pardoned them after he took office in 1801, asserting that the statute violated the First Amendment's protection of free speech.
A few years later Jefferson explained his position to Abigail Adams, the wife of his Federalist adversary John Adams. "You think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, any more than to the Executive to decide for them.... The judges, believing the law constitutional, had a right to pass a sentence ... because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution." If the judges could "decide what laws are constitutional ... for the Legislature and Executive also, [this] would make the judiciary a despotic branch." As Jefferson saw it, his constitutional power to pardon authorized him—indeed, he said, required him—to act on his judgment that the antisedition law was unconstitutional even though the courts had upheld it.
Andrew Jackson had a similar view. In 1819 the Supreme Court held that the Constitution gave Congress the power to create a national bank. Jackson disagreed with that decision. When his political opponents tried to make renewing the bank's charter a political issue, Jackson happily vetoed the proposal. He told Congress that the "opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both."
These cases differ from our Plyler problem in several ways. There is no obvious way to get judicial review of a veto or a pardon even if the president's decision is made entirely on constitutional grounds. In addition, we might think that presidents can veto laws and pardon people for policy as well as constitutional reasons. Even if we somehow devised ways of reviewing vetoes and pardons, we would not be able to distinguish between decisions based on the president's constitutional interpretations and those based on merely policy grounds. Jackson's veto of the bank recharter, for example, prefaced its constitutional argument with several arguments that the bank was a bad idea because, among other things, it gave too much power to its private owners. And finally, Jefferson and Jackson acted on their views that certain laws were unconstitutional in the face of judicial determinations that the laws were constitutionally permissible. In contrast, the Plyler problem involves an official who believes that a statute is constitutional in the face of a decision that it is not.
These differences, while real, may not be important in developing an argument against judicial supremacy. Students of the U.S. Constitution are comfortable with the idea that some decisions, even constitutional decisions, may not be subject to judicial review. The Supreme Court itself has devised an important rule, the political question doctrine, that leaves some constitutional decisions to Congress and the president with no possibility of judicial review.
Such a rule, however, is not an inherent part of a constitutional system. We could design ways of ensuring that presidential decisions to pardon or veto on constitutional grounds could be reviewed by the courts. For example, we could interpret the Constitution to require the president to veto bills only on constitutional grounds, or only on policy grounds. In the first situation, if the president's veto message asserted either a policy ground or a constitutional interpretation that the Court rejected, the courts could invalidate the veto and the bill would become law. In the second, a veto message asserting a constitutional ground, as Jackson's did, would be ineffective even if it contained policy arguments against the bill as well.
Odd as this system sounds to contemporary U.S. ears, the proposition that the president's veto power was limited had some support in the nation's early years. According to one study, from 1789 to 1840 presidents vetoed twenty-one bills, "and only five or six were based upon other than constitutional grounds." We might take this practice to indicate an understanding that bills ought to be vetoed only on constitutional grounds as a general rule, albeit with some exceptions. But, whether or not there was such an understanding, it surely is possible to design a system in which the president's veto power is limited. And in such a system, judicial review would always be possible.
Some decisions are not open to judicial review under the present U.S. constitutional system. But that does not in itself fatally undermine the theory of judicial supremacy. The limits on judicial review show at most that, as we understand our system today, the domain of judicial supremacy might not be as extensive as we can imagine it to be. As law professor Michael Stokes Paulsen puts it, "If it is illegitimate for the President to defy `the law' (as declared by the courts) where his actions can be reviewed, it is no less illegitimate for the President to defy the law where his actions cannot be reviewed." And conversely, if it is legitimate to defy the courts when an official's actions cannot be reviewed, it is legitimate to do so when they can.
With this in the background, the difference between officials like Presidents Jefferson and Jackson, who reject a prior judicial determination that a statute is constitutional, and those like Governor Faubus, who reject a determination that a statute is unconstitutional, dissolves. The courts said to the presidents, "You can do this if you think it appropriate on policy grounds, but you don't have to." Now supplement their statement: "You can do this if you think it appropriate on policy grounds, and you must do it if your only objections are constitutional, because we think it is constitutional." An official who refuses to act on constitutional grounds—who vetoes a bill rather than signs it, who refuses to prosecute for violating the antisedition act—is defying the courts just as much as a person who acts pursuant to a statute the courts have held unconstitutional.
In short, the fact that our constitutional system does not have a way to get the courts to review some official decisions that conflict with the courts' constitutional interpretations does not really counter the theory of judicial supremacy. It identifies an awkward procedural "defect" in our constitutional system without rejecting the theory directly.
Introduction Robert P. George 3
CHAPTER ONE Marbury v. Madison and the Theory of Judicial Supremacy Mark Tushnet 17
CHAPTER TWO "Despotism in Some Form": Marbury v. Madison Jeremy Waldron 55
CHAPTER THREE Dred Scott v. Sandford and Its Legacy Cass R. Sunstein 64
CHAPTER FOUR Politics and Judicial Responsibility: Dred Scott v. Sandford James M. McPherson 90
CHAPTER FIVE Lochner v. New York and the Cast of Our Laws Hadley Arkes 94
CHAPTER SIX The Substance of Process: Lochner v. New York Donald Drakeman 130
CHAPTER SEVEN Brown v. Board of Education and "Originalism" Earl Maltz 136
CHAPTER EIGHT Originalism-The Deceptive Evil: Brown v. Board of Education Walter F. Murphy 154
CHAPTER NINE Roe v. Wade: Speaking the Unspeakable Jean Bethke Elshtain 175
CHAPTER TEN Judicial Power and Abortion Politics: Roe v. Wade George Will 192